Employers are liable for what happens at out of hours work
social events. Whilst the vast majority of Christmas parties pass
without incident, when what happened at the Christmas party does
not stay at the Christmas party, managers and HR may end up with a
headache that lasts much longer than a typical hangover.
Christmas turkey number 1 – Harassment
One of the most common complaints arising from out of hours work
social events involving alcohol is harassment. Many people think
harassment just covers sexual harassment but it is wider than that.
Harassment covers ant kind of behaviour that is related to certain
protected characteristics – for example, sexual orientation
Harassment is behaviour that is intimidating, hostile,
offensive, degrading or humiliating. The most common response
employees hear when an allegation of harassment is made is "it
was only a joke!" That is not a defence – the behaviour
is measured by the impact it has on the complainant, not the
intention of the person who said or did something. It can also
cover behaviour that has this effect on a party who is not the
Employers can be vicariously liable for acts that qualify as
harassment at office parties. However, there are things that they
can do to minimise their liability:
Clear policies: clear policies
against harassment in a handbook will be helpful for an employer
defending a harassment claim but the policies must be widely
understood and enforced to carry real weight.
Training: employers should also
ensure that employees have sufficient training on the policies in
place and understand what harassment is and how to avoid it in the
However, even with the best policies and training, no employer
can manage its employees all of the time. If incidents that could
be harassment do occur, employers need to remain vigilant. Often,
those on the receiving end of this kind of behaviour feel too
intimidated to speak out or fear repercussions. Those in management
should be mindful of this. It is also unlawful to subject someone
who has made a complaint of harassment to less favourable treatment
as a result.
Employers should investigate complaints seriously and take
appropriate action. The test as to whether harassment has taken
place is subjective so managers should bear this in mind (although
a hypersensitive complaint will not be harassment). Failing to do
so could not only create exposure for this instance itself but
could also create a damaging office culture and result in worse
incidents in the future. The ghost of Christmas parties past could
create a potentially embarrassing backdrop to an Employment
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
Case law concerning the Agency Worker Regulations remains limited. We recently advised a recruitment business involved in a dispute with a "temp" and a hirer regarding who was liable for an alleged breach of AWR Regulation 5.
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